to acquit Southard of all pecuniary demands, the estate for less than its real value. If, or rather of all such demands on account of however, the mortgagee does purchase the the consideration agreed to be advanced, or as equity of redemption, he should always pay advanced by Southard. It was manifestly not a valuable, indeed an adequate consideration intended or understood by him, as releasing for it."-Powell on Mort. 122, n. N. This is his equity of redemption-nor can it, as we the true doctrine, recognized by a multitude respectfully insist, be consistently so construed of concurrent and unopposed authorities. Its by the court. application to the facts of this case is unan2. Had the receipt been intended as a re-swerably decisive. Besides, the relinquishlease of the equity of redemption, it is ineffec-ment, if intended to be made by Russell, was tual for want of any consideration. It is per- void for duress and fraud. Was he not pefectly ridiculous to pretend, as D. R. South-culiarly in the power of Southard? Was not ard does in his answer, that the mistake in that power fraudulently exerted? Did not the computation was that of Wordon Pope, Southard "make use of his incumbrance (and and that the parties themselves did not esti-a most foul use) to influence the mortgagor to mate the claims on Brown and Johnson at any part with his estate for less than its value," precise amount. Russell must, as a matter of even for nothing? But, although a surrender course, be presumed to have understood that of the document of defeasance was frauduhe was receiving, and Southard must be pre-lently coerced, the foregoing facts conduce to sumed to have understood that he was advan-show that Russell did not understand that he cing a certain and ascertained sum. Both of thereby released his equity of redemption. them must have estimated, at some fixed amount, the aggregate of the assigned demands; and must also have concurred in the same amount. And the conveyance and the defeasance show what that conventional amount was. Besides, as the defeasance required Russell to pay $4929.81 cents before he could redeem, and as the sum he had received could not exceed $4829.81, Southard still owed him $100. The conclusion is, therefore, inevitable that the payment of $100 in October, 1840, was received in satisfaction of a debt, and was no consideration for a release of the equity of redemption. And there is no pretence that there was any other consideration.

And this deduction is fortified by the fact that, within one or two years after the date of the receipt, he came to Louisville to look "after his rights there"-and then undoubtedly claimed a right to redeem-Woolley's deposition, 247.

The conclusion seems to be irresistable that, by the arrangement of October, 1830, Russell made no intentional or binding relinquishment of his equity of redemption. But the conduct of the Southards in procuring the possession of the document of defeasance and writing the receipt of October 6th, 1830, and the extraordinary character and sinister purpose of D. R. Southard's answer to those matters, reflect a flood of new light on the original contract, and afford conclusive proof of the usury and fraud imputed to J. Southard and his brother and coadjutor, D. R. Southard, the appellee. And here too, we find a retro-active auxiliary to the extraneous considerations urged in another place to show that the original contract was a mortgage.

3. But had the $100 been a new and an actual consideration, and had Russell, on the receipt of it, agreed to relinquish his equity of redemption, not only was the consideration insufficient, but the agreement was extorted by duress and fraud. Although a mortgagee may purchase the equity of redemption, he can never do so availably and irrevocably, III. No statute of limitations, proprio vigore, unless he can show that he did it fairly and applies to suits in equity. But as "equity for a full and commensurable consideration. follows the law"-in its spirit and reasonA contract by a mortgagee for purchasing and as it is proper that there should be some from the mortgagor his equity of redemption-fixed and uniform period for limiting bills in like similar purchases by others, maintaining chancery as well as common law actions, courts a relation of trust or dominion as to the ven- of equity have voluntarily adopted the statute dor-is constructively fraudulent; that is-as of limitations in all cases of concurrent juristhe best means of preventing fraud, for the tion to operate as a statutory bar, excepting perpetration of which there may be peculiar only that, in cases of fraud and mistake, time temptations and facilities in all such cases-is computed from the discovery only or from the law will assume fraud until the contrary the time when, by reasonable diligence, it shall be made manifest by the purchaser. ought to have been made. Cases of exclusive And it is well settled that, before a mortga- jurisdiction in equity are of two classes-the gee will be permitted to bar the equity of re- first class embracing all cases in which, if remdemption by an alleged purchase of it from ediable by an action, the statute of limitations the mortgagor, he must prove that the contract would operate as a bar; and the second class, was unquestionably fair, and upon an ade-comprehending all those cases in which the quate consideration. "The mortgagee may be- remedy at law, if there had been any, would come the purchaser of the equity of redemp- not come within the operation of any statutory tion if he does not make use of his incum- limitation. The first class may be illustrated brance to influence the mortgagor to part with by an equitable right to land by an entry or

Then it is manifest that the equity of redemption is not lost or defeated by mere lapse of time.

warrant only, without a grant, or consummated authorites to require either elaboration or cionly by a junior patent, the legal title to the tation of adjudged cases for ensuring the resame land having been previously granted to cognition of their soundness by this court. an adversary claimant. In that case, the rem- This case belongs to the last class of cases edy against the elder and the more perfect exclusively cognizable in a court of equity; title will be exclusively in a court of equity. and therefore is not affected by any statutory But with that exception, the case would be bar. We insist also, that it is not concluded altogether analogous to an action of ejectment by any presumptive bar. Southard's possesfor the same land between the same parties; síon could not be presumed adverse or of any and, consequently, if the defendant had been other than the amicable character of that in continued possession twenty years, the of a faithful mortgagee, before the 6th of Oc statute of limitation might bar the bill in tober, 1830, from which time we might perchancery precisely as it might have barred an haps infer that his possession was in fact ejectment, had that been the proper remedy wrongfully in his own usurped claim of absoinstead of the suit in equity. In such a case lute owner. Only about 17 years had elapsed the statute would operate by analogy. But in between that time and the commencement of the second class of cases of exclusive juris- this suit. And, even from the end of four diction in equity, which may be illustrated by months succeeding the date of the defeasance, trusts, there may be no such analogy. The until the institution of the suit, 20 years had possession of the Trustee will not be presumed not elapsed. to have been adverse to the right of the beneficial owner; and until it had been tortious or adverse in fact, and had so continued for twenty years, a legal remedy, if any such had Nor is there any auxiliary fact which, when been maintainable, would not have been combined with the running of time, would be barred by the lapse of time. Of course, un-sufficient to create a rational presumption, of der the same circumstances, time would not presumplion, in fact that the equity of rebar the suit in equity. But, even in that case, demption had been either abandoned, relapse of time, though not a peremptory statu- linquished, or overruled by supervening and tory bar, might be prima facie a presumptive preponderating equities in Southard. bar. Feeling that, for stability and uniformi- There is enough in the record to shew, as ty, legal presumptions arising from mere lapse already suggested, that the fraudulent and of time should depend on some fixed period, oppressive transaction of October, 1830, was and deeming twenty years most fitting, be- not intended by Russell at that time, nor uncause the legislative department had selected derstood by him since as a relinquishment of that period as proper for barring rights of en- his right to redeem. And Southard does not try, and also because, within about that time, pretend that it was ever released by any subloss of documents and death of witnesses sequent act. He even denies that it ever exis might be reasonably presumed-Judges and ted. And moreover, some facts before alluJurists, wherever the common law prevails, ded to, indicate a recognition of a subsisting have finally adopted the lapse of twenty years mortgage, since the year 1830, and oral asser (nothing else appearing to counteract it) as the tions of a right to redeem by Russell since that period of legal presumption from mere time. memorable year. We can perceive no fact coAnd this presumption applies equally to every operating with lapse of time to establish a judicial forum and to all forms of suit. Thus, presumptive Bar. And the mere lapse of 17 after a bond had been due 20 years, the law years, or even 19 years and 8 months, is unques will presume payment, unless some other tionably insufficient. Besides, so far as it might fact inconsistent with that presumption shall operate per se, (though, in that way ineffect be proved; and consequently thus also, if a ual) as one fact tending to the inference of mortgagor had continued in possession twenty release, it is rebutted by the destitute and years after the day of forfeiture, the law would helpless condition of the mortgagor. A victim presume that he had paid the debt punctually, of the avarice and fraud of the Southards, he and that his possession had been in his own has been unable to redeem by payment-and right as absolute owner, and therefore adverse has been lulled by the hope that, when they to the claim of the mortgagee-and, for the should become gorged with the profits of the like reason, if the mortgagee had been in posses- farm, they would finally yield it up to him on sion twenty years after the debt became due, equitable terms, without a suit, which he, a there would be a resulting presumption of law, destitute stranger, had neither the courage, that the equity of redemption had been re- nor means to prosecute against such fearful leased. But, in such cases, as the bar would odds, until 1847, when, all hope of voluntary be merely presumptive, it might be defeated by justice expired and he began to apprehend proof of a recognition of the subsistence of the that longer delay might arm his adversary debt or of the mortgage, express or implied, at with a legal weapon of successful resistance. any time within the twenty years; for not one Nor are there any countervailing equities day short of full twenty pears, uncorroborated D. R. Southard is a volunteer; He had also by any other and fortifyiug circumstance, will full notice of the facts, and counselled and cobe sufficient to raise the legal presumption operated, throughout, with J. Southard. He from mere lapse of time. These doctrines we participated in every act of fraud and is re consider too well settled by reason and modern (sponsible as one of the guilty actors. There

actual or constructive, of Russell's pre-existing equity-see deposition of Longest, 204.

is no danger that a redemption now will result in any injustice to him. He has made no valuable improvements in faith of ownership. 3. Nor can Tompkins be entitled to the He could complain of no loss by any wrongful protection claimed by him as a bona fide puract or deceptive omission by Russell. And, chaser without notice. Southard himself says, if any unreasonable disappointment or loss as to that matter, only that he had conveyed should result to him from a decretal redemp-to Tompkins. He does not intimate that he tion, his long occupancy of the farm and en- sold to him for a valuable consideration. joyment of the profits, would alone afford am- Tompkins says that he bought 31 acres for ple means for his indemnity, if he should be $3,500, and had paid $1,500 of that price. If entitld to retribution. Such enormous fraud all that be true, the actual price was about and oppression, as he and his testator inflicted $112 an acre for land proved to be worth $250. on an unfortunate and distressed fellow citizen, Tompkins is the son-in-law of D. R. Southard. should not be consecrated by the lapse of It is quite likely that the conveyance was an seventeen years. They cannot be thus advancement. But were it a sale, Tompkins' legalized by Kentucky Justice or American position and relationship towards Southard Jurisprudence. The right to redeem has not might imply notice of Russell's equity. But, been relinquished, forfeited or lost. This we however all this may be, Tompkins, having think, we have a right to conclude with confi- paid only a portion of the consideration, is not dence. in the legal sense, a "purchaser," without notice. Both the conveyance of the legal title and the payment of the consideration are necessary to constitute such a purchaser.Hardingham vs. Nichols, 3 Atk., 304; Sugdon on Venders, 302; Frost vs. Beckham, 1 Johnson's Ch'y. n. 288; Lewis vs. Palmer, 7, ib. 65; 2d vol. Mad. Ch'y. 255; 2d vol. Story's Equity, Sec. 1502. So far as Tompkins had not paid before the commencement of this suit, (being a bona fide buyer in fact,) he would hold the legal title under an implied trust for Russell. And should he, so far as he had pre

The extent of the relief which would be proper, in the event of a reversal of the decree of the circuit court, may be worthy of some supplemental notice.

1. Southard should be charged with the reasonable profits of the farm, subject to a credit for amelioration, if any. He may be entitled to $4,829.81, with six per cent. interest thereon, from the date of the contract. And we presume to suggest that he may be liable for $7,000, for which he insured the house, if he received that sum under his poli-viously paid, be entitled to protection pro tanto, cy; or for whatever he did receive, if he received any thing. But, as the facts necessary for a final adjustment of this matter have not been effectually litigated, we would suggest the propriety of submitting it to ulterior investigation on the return of the case, if it shall be remanded for a final decree for relief.

there would be no difficulty in securing to him a just measure of indemnity. We desire nothing but justice either as to the redemption or the extent and manner of it.

We hope for the rescue of our long suffering client at last, though late, by the decree of this court. And reposing on this trust, we 2. The lein claimed by the heirs of Burks here conclude, without further amplication, ought to be disregarded. It is but the renew-adding only that, whatever may be the ultial of a mortgage taken by himself as an addi-mate decision, we have a right to expect that tional security for the price of lots sold by it will, in all respects, harmonise with the him, and on which also he reserved a lien. Lex loei contractus-which is the modern code That lien on lots should be presumed to be of Eequitable Jurisprudence as recognised sufficient; and moreover, Burks had notice, and established in Kentucky. 49

This Court having, at its last term, in the case of Russell vs. Southard and others, decided that a conveyance of land near Louisvills, Ky., by Russell to Southard, was a mortgage, and that the mortgagor might redeem on terms prescribed in the opinion, Southard petitioned for a re-hearing-and his petition being overruled, the Circuit Court, in obedience to the mandate, entered a decree for redemption, and continued the case for further preparation as to some of the defendants. Whereupon Southard filed in that Court a bill of Review, praying for a review, or a change of the decree for redemption, on the allegation that, since the date of the original decree by the Circuit Court, he had made the following discoveries :

1. That the attorney (Stewart) who brought Russell's suit "illegally, fraudulently, and corruptly obtained, by direct bribery, the testimony and deposition of Peter Wood, a material witness in the case, and upon faith in whose statements the Supreme Court was in duced to render its decision."

extract from a letter from G. C. Russell to J. W. Wing, dated Alexandria, 19th December, 1827, which is filed herewith. This extract is entirely in the hand writing of W. O. Payne, who died long before the institution of this suit, and certified over his signature to be truly executed, on the 16th January, 1828."

8. That he has seen what purports to be an official extract from the schedule of estate surrendered by Russell, under oath, when he took the benefit of the insolvent act of Alabama, one item of which is a debt against John Floyd for $8,000. This together with the extract of the letter from Russell to Winn, induces the belief that the sale from Floyd to Russell was coupled with some sort of contract between them, which authorized Russell to look to Floyd for whatever difference there might be between the price obtained on a resale of the farm, and that which he paid Floyd

therefor."

Such is the anatomy of the Bill of Review, which, with the leave of the Circuit Court, Southard filed. Russell, in his answer to that 2. That the contract under which Stewart bill, denies that the allegations are sufficient brought the suit was champartous, entitling for maintaining a Bill of Review-denies Stewart to one-half of the land in the event

of success.

3. That "just before the sale of the farm to James Southard, it was offered by Russell to George Hancock and the late Mrs. Caroline Preston for the price of $5,000, and he was urgent with each of them to buy at that price."

champarty, and shows that, by his contract with Stewart the latter was to have a contingent fee of one-half of the value of the land redeemed-alleges that there was no specific agreement as to the amount of the fee until after the suit was brought-that there was no understanding or purpose that Stewart should have any interest in the land until after this 4. That shortly previous to the sale to J.Court decided the case, when, at the instance Southard, the farm was advertised and offered for sale by Russell at auction, and not sold for want of bidders-though your orator has "some imperfect recollection of such having been the fact."

5. That Talbot had sold, for only about $4,000, property in Huntsville, which, at the estimate of $10,000, he testified, in the original suit, he had offered Russell for the land afterwards conveyed to Southard.

6. That James C. Johnson, a witness in the original case, will prove that the Supreme Court has entirely misconceived or misconstrued what he intended to say in his deposition, as will appear by his affidavit filed herewith."

7. That "he has found among the papers of J. Southard what purports to be a written

of Henry Clay, one of his counsel here, he conveyed to Stewart half the land for securing his own fee, and the fees also of Mr. Clay and of several others of his counsel in this Court and in the Court below-denies, that any corrupt influence was exercised in procuring Dr. Peter Wood's testimony-avers that his testimony was strictly and wholly true-states that, when he visited Kentucky in the Fall of 1827, his manager, Wing, presented to him a list of debts to a large amount, incurred by his (R.'s) agent, among which was a debt to Wood and another to Dr. Smith-that when he brought his suit, he gave Stewart a memorandum of witnesses, of whom Wood was one, and, being informed by Stewart that Wood and Smith claimed payment of their said debts, and that he had presented to him by

Wood a bill for medical services and borrowed by an original bill in the nature of a Bill of money, authenticated by Wing's endorsement, Review. he authorized Stewart to give a note for it, A Bill of Review and a bill for a new trial which he afterwards understood Stewart had of an action depend on the same principles, done, for $280-and denies that there was any and are governed by analagous rules of pracother motive or consideration for that note tice; and neither of them, as we insist, can be than a desire to satisfy an honest debt-denies maintained on the extraneous ground of a that the decree of the Court would have been discovery of new testimony, unless the comotherwise than it was without Wood's testimo-plaining party had been vigilant in the preny-insists that, as Southard had, in the ori- paration of the original suit, and could not, by ginal case, endeavored to impeach Wood, and proper diligence, have made the discovery in had, in his petition for a re-hearing in this time to make it available on the trial—nor unCourt, said that he had always suspected that less the discovered testimony will prove a fact he had been suborned, he had been negligent which, had it been proved before or on the in not showing sooner the fact of the existence hearing of the original case, would have proof the note to him for $280-and avers that duced an essentially different judgment or this matter is no cause for a Bill of Review- decree-nor unless the new evidence be either denies that he ever offered the land to Han- documentary or, if oral, shall establish a fact cock or to Mrs. Preston for $5,000-denies not before in issue for want of knowledge of that he saw Hancock during the year 1827- the existence of the fact or of the proof of says that, instead of offering to buy his land, it. This is the long and well settled doctrine Mrs. Preston proposed to borrow from him in Kentucky, (See Respass, &c., vs. McClan$5,000-denies that there was any such un- ahan, Hardin, 347; Forbes vs. Shackleford, derstanding with Floyd as charged in the bill 1 Littell, 35; Taney vs. Downer, 5th, Ib. 10; -avers that he could, any day, have sold the land for much more than $5,000-that J. D. Breckinridge informed him that he could get $9,000 for it, but he was unwilling to take that sum for an absolute conveyance-denies that any specific property in Huntsville was offered by Talbot, and avers that the offer was $10,000 in property of that value-denies the materiality of Johnson's explanation of his deposition, or his right to construe it for this Court, or Southard's right now to bring that explanation in-denies the genuineness of the extract from a letter to Wing, argues to prove that it is false, and avers that the spurious paper has been lately and fraudulently altered, by erasing 'redeem,' and inserting re-purchase'-denies that any of the various grounds specified in the bill are sufficient to justify a review-insists that all of them were involved in the issues previously litigated-avers that, in not presenting them in proper time, Southard was guilty of gross negligence and concludes by averring that, from the beginning of this litigation, Southard had been guilty of the most unscrupulous frauds and foul play, and appeals to the record to prove it and finally denies all fraud and every allegation not directly answered, and prays a dismission of the bill and an enforcement of his decree.

The Circuit Court dismissed the bill-and Southard has appealed.

In arguing the case, we will first briefly consider the law which must govern the decision of it. As Southard's Bill of Review does not question the correctness of the opinion of this Court on the original record, but relies altogether on an alleged discovery of evidence since the date of the first decree in the Circuit Court-an inquiry into the correctness of the decision sought to be reviewed would be superfluous and impertinent.

Though a decree may be set aside for fraud in obtaining it, the proper proceeding in such a case is, not by a Bill of Review, but

Findley vs. Nancy, 3 Mon. 403; Hendrix's heirs vs. Clay, 2 A. K. Marshall, 465; Respass &c., vs. McClanahan, Ib. 379; Daniel vs. Daniel, 2 J. J. Marshall, 52; Hunt vs. Boyer, 1 Ib., 487; Brewer vs. Bowman, 3 Ib., 493; Ewing vs. Price, lb. 522.) This doctrine is as rational every where as it is authoritative in Kentucky; and we think that it is generally recognised and maintained wherever the equitable jurisprudence of England prevails. It is co-existent with the ordinances of Chancellor Bacon, of which that one applying to Bills of Review on extraneous ground has been, from the year of its promulgation, interpreted as requiring either new matter not before litigated, or recorded or written evidence decisive of a fact involved in the former issue, and of the existence of which memorial the complaining party was, without his own fault or negligence, ignorant, until it was too late to use it to prevent the decree sought to be reviewed. (See Hinds' Practice, 58; Gilbert's For Rom. 186; Story's Equity Pleading, 433-4, N. 3 Taylor vs. Sharp, P. Wm's 371; Norris vs. Le Neve, Atk., 33-4, 2 Maddox, Ch'y, 537; Partridge vs. Usbome, 4th Russell, 195; Wiser vs. Blackly, 2 Johnson's Ch'y Rep's, 491; Livingston vs. Hubs, 3 Ib., 126.)

Discovery of additional witnesses, or of cumulative or explanatory evidence "by the swearing of witnesses," has never been adjudged a sufficient ground for a Bill of Review, or for a new trial of an action. The rule applied by most of the foregoing authorities, and virtually recognised in all of them, is dictated by obvious considerations of poli cy, security, and justice. A relaxation of it so as to allow a new trial or review, on the alleged discovery of corroborative or explanatory testimony of witnesses, would open the door to fraud, subornation, and perjury, and would not only encourage negligence, but would lead to vexatious uncertainty and delay in litigation.

As to the discovery of new "matter," or of